Ch. NAZAKAT ALI and another vs MANZOOR HUSSAIN MALIK and 10 others

ORDER

' Petitioners and inter alia, respondents Nos. 4 and 5 contested election to the seat of Nazim and NaibNazim in Union Council No,12, Rawalpindi. Respondents Nos.4 and 5 were declared returned.

The petitioners challenged their election by filing an election petition on 6-8-2001. A reading of election petition shows that it was alleged only against respondent No,4 that he is smuggler, habitual offender and history-sheeter. Several other allegations on the same line were made against him. Respondents Nos.3 and 4 filed a written statement on 23-11-2001 wherein the said allegations were denied. Issues were framed and evidence was recorded. Vide judgment dated 4- 9-2002 learned Election Tribunal allowed the said application and set aside the election of both the respondents Nos.3 and 4 and at the same time declared the petitioners as returned to the said seats. Against this judgment Writ Petition No,2622 of 2002 was filed by Shabbir Hussain respondent No,3 while Writ Petition No,2637 of 2002 was filed by Ilyas Khan respondent No,5. Both the writ petitions were heard together. Vide judgment dated 17-9-2002, Writ Petition No,2622 of 2002 filed by Shabbir Hussain respondent No,4 was dismissed and Writ Petition No,2637 of 2002 filed by Ilyas Khan respondent No,4 was allowed. Now against judgment passed in Writ Petition No,2622 of 2002, Shabbir Hussain respondent No,4 filed a C.P. No,1644 of 2002. I am told that no appeal was filed against the judgment whereby Writ Petition No,2637 of 2002 filed by Ilyas Khan (Naib Nazim) was allowed. Be that as it may, C.P.L.A. No,1644 of 2002 was converted into an appeal and allowed vide judgment dated 16-10-2002 of the Honourable Supreme Court the matter was remanded back to the learned Election Tribunal for decision afresh of the election petition after affording an opportunity to the respondents (present petitioners) to produce independent evidence to prove that it was the petitioner (present respondent No,4) to whom the documents Exhs.A/1 to A/18 on record pertained.

2. After remand the learned Tribunal commenced proceedings in compliance with the order of the Honourable Supreme Court. Further evidence was recorded. Vide judgment dated 21-4-2003 the election of respondent No,4 has been declared to be null and void and set aside. Petition against Ilyas Khan respondent No,4 has been dismissed. Learned Tribunal has directed fresh election to the seat of Nazim U.C.12.

3. Learned counsel for the petitioners contends that the learned Tribunal has acted without lawful authority inasmuch as he ought to have declared petitioner No,1 as returned to the seat of Nazim after setting aside election of respondent No,4. Further contends that the election of respondent No,5 was also liable to be set aside, notwithstanding the fact that no allegation whatsoever was made against him in the election petition.

4. I have examined the records. Starting from the judgment in the case of Syed Saeed Hassan v.

Pyar Ali and 7 others PLD 1976 SC 6, it has been the consistent view of the superior judiciary that upon setting aside of election of a returned candidate, the election petitioner can be declared elected only if it is alleged and proved that disqualification attributed to the returned candidate was so notorious that the entire electorate was fully aware and only upon establishment of the said fact the votes cast by the majority could be said to be thrown away votes.

5. I called upon the learned counsel for the petitioners to demonstrate as to where is allegation and where is the evidence that the electorate was aware of the said misdeeds attributed to respondent No,4. He is unable to do so. I, therefore, reject the said contention.

6. So far as the second contention is concerned, I have narrated the history of the case in brief above. Now to my mind, that part of the judgment dated 17-9-2000 whereby Writ Petition No,2637 of 2002 filed by Ilyas Khan respondent No,5 was allowed was not questioned before the Honourable Supreme Court. Copy of the judgment dated 16-10-2002 discloses that C.P.L.A. No,1644 of 2002 was filed only by Shabbir Hussain respondent No,4 against the judgment inasmuch as Writ Petition No,2622 of 2002 filed by him was dismissed. Only one respondent i.e, respondent No,10 is stated to be represented by learned Advocate Supreme Court and Advocate-on-Record. In the copy of the judgment as well no contentions were raised and of course noted regarding the acceptance of the writ petition filed by Ilyas Khan respondent No,5. Be that as it may, since vide operative part of the judgment of the Honourable apex Court the judgment dated 17-9-2002 of this Court was set aside, I have examined the said contention as well. Now the learned Election Tribunal has decided the petition with reference to a judgment of this Court in the case of Ch. Maqbool Ahmad and others v.

Malik Falak Sher Farooq and others PLD 2003 Lahore A 138 that the election of respondent No,5 Naib Nazim is not to be set aside only upon finding that respondent No,4 suffers from disqualification alleged and proved against him. I am in respectful agreement with the said judgment. This has been consistent view of this Court for reasons stated in several judgments including judgment dated 17-9-2002 and not questioned before the Honourable Supreme Court. The writ petition is dismissed in limine.